February 04, 2016

Recent opinions handed down by the U.S. Supreme Court which hold that imposing harsh sentences on juvenile offenders violate the Eighth Amendment prohibition against cruel and unusual punishment have transformed the landscape of juvenile sentencing. In December, the John D. and Catherine T. MacArthur Foundation, which earlier in the year had announced it would be winding down its significant support for juvenile justice reform efforts as part of a refocusing of its grantmaking strategy on a handful of "big bets," including the over-use of jails and incarceration in America, released Juvenile Justice in a Developmental Framework: A Status Report(48 pages, PDF), its summation, based on twenty years of work, of developmentally appropriate best practices in nine key juvenile justice policy areas.

Last month, PND spoke with Laurie Garduque, director of justice reform at the foundation, about the genesis of its work in the juvenile justice field, the report's findings, and the prospects for further reform as MacArthur exits the field.

Philanthropy News Digest: MacArthur entered the juvenile justice field in 1996, a decision motivated by a belief inside the foundation that juveniles are not adults and should be treated differently by the criminal justice system. What was it about the environment in the mid-1990s that brought the issue to a head for you and your colleagues?

Laurie Garduque: We'd been investing in research on child and adolescent development before 1996, and that research made it clear that children and adolescents were different, cognitively and emotionally, than adults. But the legal implications of those findings had not been considered. In the 1980s, violent crime among youths increased sharply, and fears of a generation of "super predators," a fear fanned by politicians and the press, led states across the country to move to treat young offenders as if they weren't young. States began to focus on the offense, not the offender, and moved toward harsh, punitive laws that included making it easier to try adolescents as adults. The report notes that, in the years leading up to MacArthur's decision to enter the field, forty-five states had changed their laws to try adolescents and children, some as young as ten years of age, as adults. States had also removed the kinds of due process protections you would like to see for young people – for example, determining whether or not they're competent to stand trial. And within the system itself, the emphasis was less on rehabilitation and treatment, and more on punishment. It wasn't about helping young people learn from their mistakes and getting them back on course; it was about punishing them harshly.

Knowing all that, knowing the harm that can result when you treat young people as adults, and seeing the toll these new laws were taking, dispropor­tion­ately, on young people of color and on low-income communities, the foundation started to look at ways we could use research, scientific evidence, and best practices to stem the tide and reform the system. In effect, we were looking for ways to reverse the rush toward draconian reforms and policies that was sweeping the country.

PND: One of the first things you and your col­leagues did was to create a re­search network focused on some of the important aspects of adolescent development and juvenile justice. Can you share with us some of the key findings surfaced by that initiative.

LG: You have to go back to the origins of juvenile court in the early part of the twentieth century, which was based on the recognition that children were deserving of a separate justice system from adults because they weren't as competent as adults, weren't as culp­able for their actions, and should be given the benefit of the doubt when it comes to their capacity to change. Those ideas were challenged in the '80s as crime rates in the United States rose. To get society to once again accept the idea that a young person is less culpable for his actions than an adult, is less compe­tent to stand trial, and has more of a capacity to change than an adult, we knew we would have to map the adolescent development research that was being done to specific legal concepts. How, for example, do you determine whether someone is competent to stand trial? Are adolescents fully responsible for and truly understand the consequences of their actions? Are they more susceptible to peer pressure? More impulsive? Given their developmental immatur­ity, both with respect to their behavior and their brain development, should the criminal justice system treat them differently? The same is true of sentencing. We tend to punish adults harshly because we don't believe they have the capacity to change, or they're not as amenable to treatment and rehabilitation, whereas young people, who haven't yet matured, either emotionally and, in many cases, psychologically, are more likely to respond to rehabilitation.

So, as I said, it became important to map what all that looked like in terms of adolescents' social, emo­tional, and cognitive develop­ment, and to try to identify what the differences between children, adolescents, and adults in those areas were. We were confident that if we could pro­vide scientific evidence which demonstrated, in effect, how the immaturity of young people argues against them being treated as adults by the justice system, it could be the basis for a new way of thinking about how to hold juvenile offenders accountable for their behavior.

As things turned out, that body of research also became important in terms of recent Supreme Court decisions and was a valuable source of guidance for state and local agencies with respect to their juvenile justice practices.

PND: I want to talk about the Supreme Court in a minute. But first, in addition to supporting research, tell us about some of the other strategies the foundation developed to advance the cause of juvenile justice reform.

LG: What we recognized very early on is that there's no such thing as a single juvenile justice system in the United States. There are fifty juvenile justice systems, in that each state has the power to decide what it is a juvenile offense and what the policies and practices should be in terms of sentencing for that offense. We also knew that there was a great deal of discretion exercised at the local level about whether to process the young person formally or informally, and that states vary in terms of the amount and kinds of resources available to keep kids in the community, as opposed to sending them off to prison. We also knew that if we wanted to demonstrate that juvenile justice reform was practical, feasible, desirable, and could produce better outcomes for kids and the community, all while saving taxpayer dollars and improving public safety, we had to make our case on the ground, in individual jurisdictions.

So, with the research generated by our research network providing the basic framework around which juvenile justice reform should, in our opinion, be pursued — things like ensuring that due process protections for juveniles are in place, minimizing juvenile offenders contact with the adult criminal justice system as well as the use of secure confinement, providing them with rehabilitation and treatment — we had to show it could all be done and produce the desired outcomes.

That was the genesis of Models for Change, our signature effort for over a decade in terms of working with state and local jurisdictions across the country. We wanted to demonstrate to states that they could accomplish juvenile justice reform regardless of their starting point in terms of resources, past history, or politics. We started with Pennsylvania and then expanded our efforts to Illinois, Louisiana, and Washington. As it turned out, that expansion was critical to our success, in that it enabled us to show that there were multiple pathways to reform, regardless of your starting point. It didn't matter whether you were dealing with a Department of Justice investigation, as Louisiana was at the time, or whether you had a long history and track record of progressive reform, as Pennsylvania did. It didn't matter whether you were a red state or a blue state. And it didn't matter whether the drive for reform was led by a charismatic individual inside or outside of government. Through Models for Change, we were able to show that the system could be changed, that reform could happen, and that those reforms could be both cost effective and improve outcomes for kids and the public.

Eventually, we expanded our work with those four states, where the focus was on comprehensive reform, to twelve additional states, where the focus was on specific issues such as reducing racial and ethnic disparities, improving access to and the quality of juvenile indigent defense, and addressing the mental health needs of kids in contact with the system. And through that work, we generated a series of best practices that had been field-tested and demonstrated to be effective, developed guidebooks, tool kits, manuals, and training curricula, and partnered with the Office of Substance Abuse and Mental Health Services and the Office of Juvenile Justice and Delinquency Prevention to spread those resources to additional states. Those efforts have made a difference. The spread and diffusion of innovative policies and practices has been validated by the National Academy of Sciences, which in several recent reports talks about a developmental approach to juvenile justice reform and new ways to think about the application of a developmental framework to systems reform. The Council of State Governments has issued a similar report drawing attention to changes in law and policy. So, we feel there has been a cultural shift in the country, one that recognizes the importance of holding young kids accountable, but in ways that ensure they acquire the skills and competencies they need to become successful and productive citizens.

PND: You must be gratified by recent events. First, the Supreme Court, in a six-to-three decision, ruled that a prior decision to bar mandatory juvenile life sentences without parole must be applied retroactively. And on the same day, President Obama issued an executive order banning the use of solitary confinement for juveniles in federal prisons. Does that mean you can declare victory, or is there more work to be done?

LG: We're still dealing with the consequences of the harsh and punitive sentencing practices of the 1980s and '90s, and there is still a tendency to think that treating adolescents as adults is sound policy and practice. Which means we still have work to do in terms of rolling back automatic transfer of juvenile offenders to adult criminal courts.

I also think too many states still put the emphasis on the offense and not the offender. They just don't understand that an adolescent and an adult who commit a similar offense are not, and should not be, considered the same under the law. From an adolescent development perspective, too many of our laws are still unfair, unjust, and inhumane, and those laws have proven to be difficult to roll back. Does it surprise me? Not really. The Supreme Court only eliminated the juvenile death penalty in 2005, and only recently followed that up by eliminating life-without-parole sen­tences for juveniles in non-homicide cases and mandatory life-without-parole sentences for juveniles charged with homicide. But we still see plenty of extreme sentencing practices, which I would call anything beyond twenty-five years without the possibility of parole, for many young offenders. Those laws have proven to be very difficult to change.

PND: Now that MacArthur is exiting the field, how can other foundations support the work that needs to be done?

LG: We think there’s a lot of momentum building behind juvenile justice reform, that networks and advocacy organizations have been seeded at many levels, that juvenile justice professionals and state legislators are better informed, and that there's a substantial body of knowledge out there with respect to best practices, sentencing guidelines, and so on.

That said, MacArthur has shifted its focus to the misuse and overuse of jails, a major issue affecting low-income people and communities of color, where the problem of mass incarceration begins. Based on our juvenile justice work, we were, and are, confident that there is an interest, at both the local and state levels, in changing policies and practices when it comes to the use of jails and incarceration while protecting public safety. One of the things we learned is that local jurisdictions not only need resources to support the adoption and implementation of new policies and practices, they also need technical assistance to help guide their reform efforts. But with new leadership, new resources, and clear pathways with respect to systems reform, the prospects for further change, change that can be sus­tained, are bright. Will there be threats to the current wave of reform? Another spike in crime rates followed by a moral panic? No one can say, but it's certainly happened before. Still, we're hopeful that activists and reformers are in a better position, as a result of our efforts, to deflect any such threats to the gains that have been made and will be able to keep the momentum going.